BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110011669 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a physical disability retirement or an early retirement.

2.  He states, in effect, he did not get out of the military on his own free will, but was discharged because he was found to be medically disqualified for further service.  He was in the process of going to Warrant Officer Candidate School when he was discharged and believes he should qualify for a physical disability retirement.  

3.  He provided copies of various letters.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His records show he enlisted in the Regular Army on 28 March 1966.  After the completion of training, he served in military occupational specialty 76Q (Special Purpose Equipment Repair and Parts Specialist).  

3.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 8 March 1968 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve service obligation.  

4.  His records contain a letter, from the U.S. Army Administration Center, St. Louis, MO, dated 31 July 1969, subject:  Physical Condition.  This letter shows he had a tonsillectomy and adenoidectomy in June 1969 and his expected prognosis was a complete recovery with no limitations.  

5.  On 26 September 1969, he was shown to be medically qualified for retention in the USAR and was expected to fulfill the remainder of his Reserve service obligation. 

6.  His records also show that after a break in service, he enlisted in the USAR on 9 March 1973.  He continued to serve in the USAR and the Army National Guard (ARNG) through a series of reenlistments until his separation in 1989. 

7.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), printed from the Human Resources Command Integrated WEB Service, Retirement Information Section, shows he completed 11 years, 11 months, and 11 days of qualifying service for retirement purposes between the period 
8 March 1974 and 8 March 1989.  

8.  He provided a letter (no date) which showed he had been identified by the USAR Personnel Center as possibly being qualified to apply for appointment as a warrant officer.    

9.  He provided a letter from the Atlanta Military Entrance Processing Station, dated 30 March 1990, subject:  Medical Disqualification.  This document shows that as a result of a medical entrance examination, he was found medically disqualified for entry in the Armed Forces of the United States.  The reason for his disqualification was noted to be because of hypertension and retinal damage.  

10.  A letter (no date) shows the applicant wrote to his Member in Congress concerning his medical situation.  The letter stated, in part, he had a total of 
22 years of active duty and federal government service combined.  Due to his diagnosis of hypertension and retinal damage, he was not able to keep his dual status working as a military technician in his USAR unit and therefore was released from the Federal Government. 

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), in effect at the time, sets forth the basic authority for the assignment, attachment, detail and transfer of USAR Soldiers.  Chapter 7 of the regulation related to the removal of Soldiers from an active status and stated that Soldiers removed from an active status would be discharged or, if qualified and if requested, would be transferred to the Retired Reserve.

12.  Army Regulation 140-10, paragraph 6-1, stated that Reservists were eligible for transfer to the Retired Reserve if they were medically disqualified:

* Not as a result of their own misconduct
* For retention in an active status (ready reserve)
* Entry on active duty, regardless of the total years of service completed

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).  The disabling condition must have been incurred or aggravated while the Soldier was entitled to basic pay.

14.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

15.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

16.  Title 10, U.S. Code, Section 12731a, enacted the early qualification for retired pay at age 60 to reduce the number of members in certain grades who possess certain skills and for Soldiers found medically disqualified for retention in the USAR on or after 5 October 1994.  Under this provision, Soldiers who complete at least 15 but less than 20 years of qualifying service and are deemed excess to the needs of the service or are medically disqualified for retention are eligible to receive retired pay at age 60.  The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.  Only Soldiers who transfer to the Retired Reserve as a result of the medical disqualification are entitled to receive this benefit.  

DISCUSSION AND CONCLUSIONS:

1.  Since there is no evidence that the applicant’s disqualifying condition was either incurred or aggravated by his military service, there is no basis for medically retiring him with disability benefits.

2.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his rank, grade or specialty and assigned an appropriate disability rating before he can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the Physical Disability Evaluation System (PDES).  

3.  His records show he continued to serve successfully in his USAR unit until     8 March 1989.  In March 1990, a medical entrance examination found him to be medically disqualified for reentrance in the U.S. Armed Forces due to hypertension and retinal damage.  He did not a have a military status at the time of the medical examination and as a result, he was not entitled to be processed through the PDES.   

4.  There is no evidence in the available record nor has he submitted any evidence to show that he met the criteria to be eligible for an early retirement under the provisions of Section 12731a of Title 10, U.S. Code.  In accordance with the applicable law, he would have had to complete 15 years of qualifying service toward a Reserve Component retirement.  The available records indicate that he had 11 years, 11 months and 1 day of total service (qualifying and non-qualifying) for longevity pay purposes.  Therefore, he fell short of the 15 years of service needed to qualify him for early Reserve Retirement eligibility. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ___x_____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




ABCMR Record of Proceedings (cont)                                         AR20110011669





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ABCMR Record of Proceedings (cont)                                         AR20110011669



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